Pretrial Justice: Current Trends in Bail and Bail Reform

Jurisdictions around the country are reforming their bail systems to prevent individuals from being jailed solely because they cannot afford the bail that is set - seeking instead to base bail decisions on an individual’s actual risk of avoiding trial or endangering the public. These reforms are often premised on two policies: expanding a judge’s authority to deny bail altogether, in order to allow for “honest” detention, and relying on pretrial risk assessments to gauge an individual’s pretrial risk. Much of this reform has been galvanized by successful federal lawsuits challenging the use of “bail schedules” - predetermined bail amounts set according to a person’s charge - as a violation of the Supreme Court’s rule against wealth-based detention. In other places, budget shortages and jail overcrowding have made reducing pretrial detention a political and fiscal necessity. This moment has been christened the “Third Wave of Bail Reform” by people who have been active in criminal justice reform.

This program, presented by Brandon Buskey, a senior staff attorney at the American Civil Liberties Union who coordinates the organization’s bail litigation, will explore the scale of pretrial detention in the United States, explain the basic constitutional parameters of pretrial release, and survey the most popular policy reforms being advanced in the Third Wave.

Learning Objectives:

1. Identify the causes and scale of pretrial detention in the United States
2. Discuss the history, purpose, and law of bail, particularly with respect to Eighth and Fourteenth Amendments
3. Review the legal and policy implications of preventive detention and risk assessments as bail reform measures